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on Monday, August 3rd, 2009 at 12:38 pm by Radley Balko
and is filed under Forensics.
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I can’t believe you guys are so quick to disparage prosecutors and support the accused. Prosecutors have a tough job prosecuting people accused of serious crimes, often in the total absence of any evidence, without you guys nitpicking about whether the technical testimony scientific and stuff. You guys are all about worrying whether we might accidentally convict someone who doesn’t deserve it, but let me tell you, they all deserve it. On the very rare occasion when someone gets “wrongly” convicted, you need to keep in mind that that very same guy probably committed a ton of other crimes for which he wasn’t even charged. Hell, you and your self-righteous convict buddies should be thanking the prosecutors and cops for not charging those defendants with a gazillion other crimes they probably committed.

And you really need to start feeling a little compassion for prosecutors whose total self-sacrifice and 24/7 dedication to serving the public has kept you safe all these years. Instead of nit-picking about evidence, you should be on your knees thanking them that you’re still alive.

At least now he can be cross-examined by the defense and they can make the jury see how much of an idiot he is. If they bring him back, tho, I think it will backfire on them and actually make it EASIER for defendants to disprove their forensics, thanks to SCOTUS Melendez-Diaz v. Massachusetts!

At least any defense lawyer with an Internet connection and medium-strength Google-Foo should be able to, anyways.

I often hear that private certification boards can replace government regulators when addressing issues like product and food safety. Manufacturers need the certification to ensure consumer confidence in their product, and the certification firms need to be thorough and honest in order to protect the integrity of their brand. Thus, the thinking goes, everything will be at least as safe as if the government were to regulate it. Critics like me tend to argue that such an arrangement isn’t always going to work, since there’s conflicting incentives and hidden influences acting on all parties, consumer attention to and expertise in judging various certifications is going to be limited, various vulnerable portions of the population could easily be subjected to deception with little recourse.

Now, obviously, the government is doing a really shitty job here (it is of course the government that’s hiring that cockbag in the first place). But, at the same time, this also seems like a case where private certification is clearly inadequate. I’m not intimately familiar with the story, but as I understand it, Hayne can claim to be board certified thanks to a meaningless certification from a dubious organization. Law enforcement is the most influential actor in the market, and it creates incentives for Hayne to produce conclusion that favor their case. In theory, the citizens of that state and the jurors he appears before could judge his qualifications and take action accordingly, but since they have no expertise in the matter, it seems like they just see “doctor” and “board certified” and “expert” and so on and conclude that he must know what he’s talking about.

I don’t mean this to be snarky at all, because I’m genuinely curious: how do you square your experience with these cases with your libertarian beliefs about regulation?

In a stateless society, or just one less hag-ridden by scumbags like the Mississippi coroners & prosecutors, certifying organizations that give their “OK” to hacks like Hayne would be subject to a civil suit for some type of fraud. Hayne’s malfeasance and lack of adherence to basic standards is well-documented; an organization that certified otherwise after hearing evidence of such antics is guilty of not performing due diligence.

As an example, Underwriters Labs (the electric device testers) has to ensure that their UL approved mark only goes on those items that pass exhaustive tests. Their reputation, and thus their business model, would be ruined if UL-approved devices failed. For government agencies, regulatory or otherwise, failure is a brief stint on CNN and then into the memory hole. These people don’t even have the decency to resign any more. They just admit that “mistakes were made” and keep on going. Shouldn’t several someones at the SEC pay for their lack of investigation into the Bernie Madoff ponzi scheme, of which they had ample warning? Shouldn’t prosecutors who gleefully request autopsies tailored to their theory of the case be jailed for suborning perjury? I could go on for pages, but I think you get the idea.

“Law enforcement is the most influential actor in the market, and it creates incentives for Hayne to produce conclusion that favor their case.”

This shows the real problem–the law enforcement’s ‘case’ is seen as getting convictions, not deciding between guilty and innocent. If prosecutors counted it as a loss when they put an innocent person behind bars, rather than counting all convictions as wins, the country would be far better off, except for Radley, who’d have to get another job.

In a stateless society, or just one less hag-ridden by scumbags like the Mississippi coroners & prosecutors, certifying organizations that give their “OK” to hacks like Hayne would be subject to a civil suit for some type of fraud. Hayne’s malfeasance and lack of adherence to basic standards is well-documented; an organization that certified otherwise after hearing evidence of such antics is guilty of not performing due diligence.

What is preventing someone from suing them currently?

As an example, Underwriters Labs (the electric device testers) has to ensure that their UL approved mark only goes on those items that pass exhaustive tests. Their reputation, and thus their business model, would be ruined if UL-approved devices failed.

Okay. That’s an example of a case where it works. That doesn’t prove that it would work in all cases, or that it works as a matter of course. I’d also add that, as I understand it, the products in question are required by law to carry 3rd party certification, and UL is one of the government-approved providers. Given that, I’m not really sure you can put them forth as an example of success absent regulation.

Shouldn’t several someones at the SEC pay for their lack of investigation into the Bernie Madoff ponzi scheme, of which they had ample warning? Shouldn’t prosecutors who gleefully request autopsies tailored to their theory of the case be jailed for suborning perjury?

Yes and yes. But in the former case, I’m not really sure what a less-regulated market would have done differently, and the latter case is neither here nor there–if people demanded that prosecutors loose their immunity to civil suits, it could happen even under our current system.

This shows the real problem–the law enforcement’s ‘case’ is seen as getting convictions, not deciding between guilty and innocent.

Agreed. And, at the same time, the people on the receiving end of their malfeasance tend not to garner much sympathy from the public, various influential institutions have an interest in discouraging doubt about our judicial system, the issue is distorted by a bunch of law-and-order rhetoric, voters see only a piece of the process, jurors even less, etc. But, you know, that’s sort of my point: the reasons things happen the way they do are pretty complicated. If this were any other issue, I can’t help but feel that the libertarian position would be some ridiculously-simplified analysis of the interests at work. Something like: well, prosecutors want to get reelected so they won’t risk going to trial with faulty evidence, therefore they’ll employ reliable 3rd party labs or forensic scientists certified by the same; at the same time, the citizenry, having a strong interest in not being convicted on bad evidence will demand accountability for those same labs, etc.

“The dominant sentiment among Mississippi officials the last few years hasn’t been embarrassment, but defiance.”

Ah just like the old days. Media descends on Mississippi. Activists urge local government officials to do their jobs, uphold the rule of law, and all that good stuff. The good ole boys react by hollering about outside agitators. Hey Radley, have any of Haynes’ supporters accused you of being a communist yet?

I wonder if these coroners, Hayne and possibly some prosecutors could be charge with attempting to pervert the course of justice and some form of criminal conspiracy. Not likely, but it would be nice to see it happen. As Zargon said this willful blindness is evil.

As a Mississippian I’m embarrassed at these charlatans. I’ve been waiting for Jim Hood to get his for a long time, and this just proves how corrupt the attorney general of this state really is. Even Steve Simpson knows it. I’m speechless and sickened.

Hey Matt D. In the past, when pressed, Hayne has claimed that he uses his defunct diploma mill certification instead of the American Board of Pathology because of the ABP’s post-modern exam. He’s probably remembering the diploma mill exam. The defense attorney just needs to follow up on the lead here to show that Hayne is lying about that:http://www.theagitator.com/2008/04/28/clarion-ledger-confronts-hayne/

Hayne will insist on perjuring himself on the stand. The defense just needs to lay the story out.